All notes for Subtopic 603.04000 – Circumvention of Union; Direct Dealing With Employees

DecisionDescriptionPERC Vol.PERC IndexDate
2618E Antelope Valley Community College District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Here, the ALJ cited State of California (Department of Motor Vehicles) (1999) PERB Dec. No. 1347-S (DMV) to support his conclusion that article 11.2 authorized the District to deal directly with unit employees regarding workweek modifications. However, the plain language of the contract in DMV unambiguously waived the union’s right to bargain. Specifically, it allowed the employer to “establish, pursuant to an operational need or a request by either a [union] representative or an employee, flexible work hours.” (Id., adopting partial dismissal letter, p. 2, emphasis added.) In other words, changes to work hours did not require any employee or union approval, and certainly did not require approval by the majority of affected employees. This is not the case here. In these circumstances, the District’s decision to discuss workweek modifications with every employee individually had the effect of nullifying its contractual duty to obtain majority approval. The District sought to obtain a waiver or modification of its contractual promise not to impose modified workweeks without first obtaining the approval of the majority of affected employees. Under our law, this conduct constitutes a paradigmatic example of direct dealing. more or view all topics or full text.
4311312/28/18
2143M Omnitrans
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures. The ALJ properly distinguished prior PERB case law that found there was no violation where the employer and union specifically negotiated an agreement that bargaining would be held if the employer intended to make any changes based on recommendations from the working group. The management rights clause found in the MOU between the parties did not clearly and unmistakably waive the union’s right to bargain work assignment bidding procedures. Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures. more or view all topics or full text.
3417111/18/10
2103M City of San Diego (Office of the City Attorney) * * * OVERRULED IN PART by City of Sacramento (2013) PERB Decision No. 2351-M
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Employer illegally bypassed the union when it created and implemented procedures for employees to rescind service credit purchases made pursuant to the MOU between the parties, and solicited employees directly to rescind the transactions. Employer press release and website posting soliciting employees to rescind service credit purchases were not protected employer communications, as the statements went beyond merely informing employees of existing facts, views, arguments or opinions. Employer speech that is used as a means of violating the Act, or that evidences an attempt to bypass the exclusive representative is not entitled to protection. more or view all topics or full text.
346303/26/10
2078S State of California (Department of Personnel Administration)
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Governor’s letter to State employees listing proposals to close State budget deficit did not constitute direct dealing, even though some of the proposals concerned matters within the scope of representation, because letter did not: (1) ask State employees to bargain over or accept the proposals; (2) threaten State employees with force or reprisal or promise them a benefit; or (3) undermine the exclusive representative in the eyes of bargaining unit members as the letter stated the Governor would work with union leaders to achieve the necessary results. more or view all topics or full text.
341111/24/09
1942C Fresno County Superior Court * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Court’s conditioning employment of new court reporters on their signing an agreement to provide Realtime services did not constitute unlawful bypass of the exclusive representative because the agreement did not modify the provisions of the MOU, which provided only for a Realtime reporting pay differential and that policies and procedures for implementing the pay differential would be negotiated. more or view all topics or full text.
323801/31/08
1871H Trustees of the California State University
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
The two emails from CSU management to every Chief of Police in the CSU system did not violate the prohibition on “direct dealing” because they did not communicate new proposals to the employees or otherwise undermine the representative’s exclusive authority. more or view all topics or full text.
313512/28/06
1783M County of Inyo * * * OVERRULED IN PART by County of Tulare (2020) PERB Decision No. 2697-M
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
The Board reversed the dismissal and found the Employer had stated a prima facie case of violation of the MMBA by the United Domestic Workers and directed a complaint to issue. Where union’s negotiator tried to circumvent employer’s negotiator contrary to the ground rules and refused to negotiate. more or view all topics or full text.
30811/07/05
1731M County of Fresno
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
No bypassing of exclusive representative where County established jail working group was not formed to compete with exclusive representative. Exclusive representative participated in formation of group by providing names to county of potential members of group and contract provided for the group. more or view all topics or full text.
294712/27/04
1725E Hilmar Unified School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Once the District reaches a preliminary agreement about the health benefit plans, it may take preliminary steps to implement the plans. Such conduct does not constitute a bypass of the Association by communication with individual unit members. more or view all topics or full text.
293512/15/04
1481E Berkeley Unified School District * * * OVERRULED by Sonoma County Superior Court (2015) PERB Decision No. 2409-C
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Employer did not unlawfully bypass exclusive representative by allowing meeting between three teachers and their supervisor and refusing to allow presence of union representative, since direct meetings with employees to implement previously negotiated matters is not unlawful and no showing was made that subject within the scope of bargaining was discussed. more or view all topics or full text.
263307105/15/02
1504E Clovis Unified School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
An employer may not communicate directly with employees to undermine or derogate the representative’s exclusive authority to represent unit members. Similarly, the employer violated the duty to bargain when it bypasses the exclusive representative to negotiate directly with employees over matters within the scope of representation. In the face of CSEA’s expressed opposition to the elimination of Social Security benefits, the District’s failure to notify CSEA of the election and the decision to implement the results constitute interference with CSEA’s right to represent unit employees in violation of EERA section 3543.5(b). more or view all topics or full text.
271512/18/02
1347S State of California (Department of Motor Vehicles)
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Where expired collective bargaining agreement provided that employer could establish alternative work schedules, Board found that employer did not unlawfully bypass exclusive representative when it met with employees to establish an alternate work schedule, pp. 2-3; warning letter. more or view all topics or full text.
233016309/02/99
1258S State of California (Board of Equalization)
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
In order to sustain an allegation of unlawful bypassing, the charging party must demonstrate that the employer worked directly with bargaining unit members, and not the exclusive representative, to create a new policy or modify an existing policy affecting negotiable subjects of general application to unit members; p. 7. more or view all topics or full text.
222908104/03/98
0782E Temple City Unified School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Direct Dealing with Employees. No violation where employer had six-year history, known to union, of engaging in direct negotiations with individual employees over early retirement. Employer may, even where there has been a demand to bargain, continue to act consistent with existing policy until agreement is reached to alter that policy. more or view all topics or full text.
142102712/22/89
0646E Lake Elsinore School District * * * OVERRULED by State of California (Department of Agriculture) (2002) PERB Decision No. 1473-S
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
District bypassed the exclusive representative by negotiating directly with a unit member for a reduced work year, in violation of EERA section 3543.5(c) and, derivatively, (a) and (b). more or view all topics or full text.
121901212/18/87
0582E Oak Grove School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Unlawful employer involvement in employee organization found where "round table" forum established for improvement of communication and problem solving; adoption of NLRB standard. more or view all topics or full text.
101713406/30/86
0563E Lake Elsinore School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Employer violated the Act by impermissibly negotiating individual contracts with employees. more or view all topics or full text.
101706202/24/86
2485E Petaluma City Elementary School District/Joint Union High School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Legislative preference for collective bargaining through exclusive representation generally prohibits employer from presenting its bargaining proposals to employees instead of to their designated representatives. By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. more or view all topics or full text.
412306/30/16
0366H Regents of the University of California
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
While making offer directly to employees of benefits greater than those offered to union prior to impasse violates 3571(c) and derivatively (a) and (b), here no offer was made. Not every comment concerning subjects of negotiations will be interpreted as an attempt to bypass the union; p. 17. more or view all topics or full text.
81500712/16/83
0367E Oakland Unified School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
District unilaterally reduced hours in face of union's repeated requests for information and negotiations and compounded its unlawful conduct by bypassing union and dealing directly with employees, individually negotiating changes in assignments and hours; p. 33. more or view all topics or full text.
81500812/16/83
0317E San Francisco Unified School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Cites Modesto City Schools (1983) PERB Dec. No. 291. Here, letter made no offer to employees, nor appears to be directed to undermine employees' authority to negotiate on behalf of unit employees. more or view all topics or full text.
71417206/08/83
0193E North Sacramento School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Employer violated EERA sections 3543.5(a) and (b) when it met directly with employees and instituted unilateral changes in hours; p. 8. more or view all topics or full text.
61302612/31/81
0160E Walnut Valley Unified School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Where an overtime policy has been negotiated and put into effect an employer does not bypass the exclusive representative by implementing it. To prove that the employer bypassed the union, it must be shown that the employer sought either to create a new overtime policy of general application or to obtain a waiver of the existing policy from an employee. more or view all topics or full text.
51203803/30/81
0080E Muroc Unified School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Employers not precluded from freely expressing their views, but are precluded from using direct communications with employees to bypass exclusive rep. or undermine rep.'s exclusive authority to represent unit members; touchstone for determining propriety of direct communications is effect on authority of the exclusive rep.; no violation where employer twice communicated with employees on status of negotiations, and did not misrepresent the positions of the parties or attempt to sway the views of employees through a campaign of communications while maintaining an inflexible position at the table; pp. 19-22. more or view all topics or full text.
31000412/15/78
0074E Amador Valley Joint Union High School District
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
Successful completion of negotiations does not exonerate unlawful direct dealing conduct that may have occurred during course of bargaining; pp. 7-8. more or view all topics or full text.
2219210/02/78